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zeidman v. Patent & Trademark Office Director

zeidman v. Patent & Trademark Office Director

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Published by PriorSmart
Official Complaint for Patent Infringement in Civil Action No. 1:13-cv-00724: zeidman v. Patent & Trademark Office Director. Filed in U.S. District Court for the District of Columbia, no judge yet assigned. See http://news.priorsmart.com/-l8rH for more info.
Official Complaint for Patent Infringement in Civil Action No. 1:13-cv-00724: zeidman v. Patent & Trademark Office Director. Filed in U.S. District Court for the District of Columbia, no judge yet assigned. See http://news.priorsmart.com/-l8rH for more info.

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Published by: PriorSmart on May 18, 2013
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05/18/2013

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Page -1-
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
  ______________________________________ Robert Marc Zeidman }15565 Swiss Creek Lane }Cupertino, CA 95014 }}Plaintiff, }v. } Civil Action No.}TERESA STANEK REA, in her official } 13-cv-724capacity as Acting Under Secretary of }Commerce for Intellectual Property and Acting }Director of the United States Patent and }Trademark Office }}Office of General Counsel }United States Patent and Trademark Office }P.O. Box 15667 }Arlington, VA 22215 }}Madison Building East, Room 10B20 }600 Dulany Street }Alexandria, VA 22314 }}Defendant }
COMPLAINT
 For its Complaint against the Honorable Teresa Stanek Rea, in her official capacity asActing Director of the United States Patent and Trademark Office, Plaintiff, Robert Zeidman,through below listed counsel, states as follows:
NATURE OF ACTION
 1.
 
Plaintiff, Robert Marc Zeidman ("Zeidman"), the inventor of United States Patent No.8,316,390 ("the '390 patent") seeks to have the patent term of the '390 patent recalculated tocorrect the patent term adjustment ("PTA") under the USPTO's erroneous application of 35
 
Page -2-U.S.C. § 154(b). Plaintiff seeks a judgment that the PTA for the '390 patent be changed from2,354 days to 3,758 days, an increased adjustment of 1,404 days.2.
 
This is an action under 35 U.S.C. § 154(b) for review of patent term adjustmentsmade by the Director of the United States Patent and Trademark Office (“PTO”), and for alternative relief under the Fifth Amendment to the United States Constitution.3.
 
The PTO’s patent term adjustments challenged in this case were based on anerroneous interpretation and/or application of 35 U.S.C. §154(b).
JURISDICTION AND VENUE
 4.
 
This Court has jurisdiction over this action and is authorized to issue the relief sought pursuant to 28 U.S.C. §§1331, 1338(a) and 1361 and 35 U.S.C. §154(b)(4)(A).5.
 
Venue is proper in this district under 35 U.S.C. § 154(b)(4)(A).
THE PARTIES
 6.
 
Plaintiff Zeidman is an individual having a principal residence at 15565 Swiss Creek Lane, Cupertino, CA 95014.7.
 
Defendant Teresa Stanek Rea ("the Director") is the Acting Under Secretary of Commerce for Intellectual Property and Acting Director of the USPTO, acting in her officialcapacity. The Director is the head of the USPTO and is responsible for superintending or  performing all duties required by law with respect to the granting and issuing of patents, and isdesignated by statute as the official responsible for determining the period of patent adjustmentsunder 35 U.S.C. § 154.
 
Page -3-
FACTS
 8.
 
Mr. Robert Marc Zeidman is the inventor of record of patent application number 09/767,819, which issued as the '390 patent.9.
 
Section 154 of 35 U.S.C. requires that the USPTO Director grant a PTA per the provisions of Section 154(b). More specifically, 35 U.S.C. § 154(b)(3)(D) states that "[t]heDirector shall proceed to grant the patent after completion of the Director's determination of a patent term adjustment under the proceedings established under this subsection, notwithstandingany appeal taken by the applicant of such determination."10.
 
Under 35 U.S.C. § 154(b)(1), an applicant is entitled (subject to certain conditionsand limitations) to PTAs for the following reasons:a.
 
If the USPTO fails to take certain actions during the patent examination and issue process within specified time frames, 35 U.S.C. §154(b)(1)(A), which are known as the Adelays; b.
 
If the USPTO fails to issue a patent within three years of the actual filing date of theapplication, 35 U.S.C. § 154(b)(1)(B), which are known as the B delays; and c.
 
For delays due to interference, secrecy order, or successful appellate review, 35U.S.C. § 154(b)(1)(B), which are known as the C delays.11.
 
Moreover, 35 U.S.C. § 154(b)(1) also provides that "[t]o the extent that periods of delay attributable to grounds specified in [35 U.S.C. § 154(b)(1)] overlap, the period of anyadjustment granted under this subsection shall not exceed the actual number of days the issuanceof the patent was delayed." Finally, any applicant delays are subtracted from the actual PTA.12.
 
From the enactment of 35 U.S.C. § 154(b) to the Federal Circuit's decision in
Wyethv. Kappos
, 591 F.3d 1364 (Fed. Cir. 2010), the USPTO incorrectly calculated PTAs by giving an

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